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How to Judge Judges?

10/02/2013 05:40 EDT | Updated 01/23/2014 06:58 EST

How to judge judges?

The nomination of Judge Marc Nadon has raised important questions about the process used to select justices for the Supreme Court of Canada. Indeed, his appointment has led to charges of the politicization of the judiciary in the media, with some Canadians, rightly, wondering how our nomination process works.

If asked about my priorities when first appointed Minister of Justice in 2003, I would not have included judicial appointments amongst them; however, I learned to appreciate that this is a critical part of the administration of justice in Canada, particularly when it comes to the supreme court. Simply put, the supreme court -- as the highest appellate court and final arbiter for the resolution of legal disputes -- is at the pinnacle of our court system, and is both a fundamental pillar of our constitutional democracy and the guardian of the Constitution.

While the Supreme Court Act provides the minimal requirements for a judge to be named, the statute is silent as to the process for identifying and selecting a judge. This is the exclusive responsibility of the executive -- notably the Prime Minister and the Minister of Justice -- which is free to establish the procedure and timeline for each nomination, as well as the criteria that will be applied in evaluating potential candidates. Perhaps the time has come to formalize the process, as the variety may produce somewhat undesirable results.

For example, the Prime Minister announced Justice Nadon's nomination this past Monday just before noon, with an ad hoc parliamentary committee called for Wednesday at 1pm to meet the Justice and pose questions. The supreme court, it should be noted, starts its fall session this Monday. Regrettably, this accelerated timeline deprives Parliamentarians of adequate time to research the candidate and ask salient questions. It also prevents the newest justice from establishing a relationship with those with whom he will serve prior to the start of hearings.

To put this in perspective, Justice Fish -- whom Nadon will replace -- announced his retirement -- effective at the end of August -- on April 22nd. Simply put, there was plenty of time for the government to do this differently.

Beyond the question of timeline, the Prime Minister's office released information about the appointment providing a brief biographical sketch of the judge and information about his juridical history. What we did not hear much of, however, is why Justice Nadon was chosen and how he is expected to contribute to the Court.

To illustrate this point, the government's press releases notes that he has expertise in maritime law -- yet, it is not evident how this specialty is most useful when he is replacing an expert in criminal law and when the court hears many more criminal law cases than ones arising from maritime disputes. This issue could have been easily addressed by the government had it chosen to indicate to Canadians and parliamentarians how it selected the proposed judge.

As Minister, the selection criteria I used had merit as its predominant consideration. The specific criteria for appointment were then broken down into three main categories: professional capacity, personal characteristics and diversity. Professional capacity encompasses not only the highest level of proficiency in the law, but also considerations including proven ability to listen and to maintain an open mind while hearing all sides of the argument and the capacity to manage and share consistently heavy workload in a collaborative context. With regard to personal characteristics, here one would look at things such as whether the candidate possessed impeccable personal and professional ethics: honesty, integrity and forthrightness.

The diversity criterion concerns the extent to which the court's composition adequately reflects the diversity of Canadian society. This consideration was reaffirmed yesterday by Chief Justice of Canada Beverly McLachlin when speaking to the CBC. It should be noted that with Justice Nadon, only three of the nine Supreme Court judges will be female.

It is true that the power to name judges rests with the executive and that this limited Parliamentarians to somewhat of a rubber-stamp role without real voice or vote. But, suppose a candidate were to, for example, say something completely unacceptable at the committee hearing. Would we hope that this person would withdraw their candidacy? Would we assume the Prime Minister would not continue with the nomination? In either case, the Court would be starting with an incomplete bench, something all can agree is undesirable.

We should not seek to emulate our American neighbours and a system that is marked by politicization of the judiciary and near circus-like confirmation hearings. However, Canadians -- and in particular jurists and Parliamentarians -- merit better than a process that denies them real say. We ought to allow for a thoughtful examination of the named nominee, with time accorded for study review, and a process for meaningful public input.

In that regard, I am pleased that the process the Government in which I served put in place not only made public the protocol to be followed, but included an inventory of persons to be consulted, including provincial attorneys-generals, provincial chief justices, and eminent members of the bench and bar.

Indeed, we went so far as to establish an ad hoc committee on the process itself, inviting all parties -- three members of the Liberal Party of Canada, two members of the Conservative Party of Canada, one member of the Bloc Québécois, and one member of the New Democratic Party -- to contribute not only to the development of the process to be used, but to engage actively in the vetting of candidates, assisted by a representative of the Canadian Judicial Council and a representative of the relevant bar from which the vacancy arose. This Committee had multiple sittings and made its views known in a written report, concluding the two female nominees at the time "are eminently qualified for appointment to the Supreme Court of Canada."

The government ought to consider how it can be more comprehensive, inclusive, timely and transparent in the nomination process -- an effort I started as Minister but work which I regret to not have been able to complete. There is much that ought to be done, and it is my hope that the process will be modified in time for the next nomination, slated for next year. This is not an issue of partisan politics, but a matter of ensuring the best process for one of the most important decisions a government can make.

Irwin Cotler is the former Minister of Justice and Attorney General of Canada, a Professor of Law (Emeritus) at McGill University and a Liberal Member of Parliament.